What Happens If I Quick Deed My House But My Name Is Still on the Mortgage During Divorce?

by Mike Broemmel

Quitclaim deeds are often used in divorce proceedings to delineate who gets title to the home.

A major element of divorce proceedings is division of marital assets, distributing property obtained during the marriage, according to "The Complete Divorce Handbook: A Practical Guide," by Brette McWhorter Sember. A quick or quitclaim deed typically is used to transfer an ownership interest in a house during a divorce case. A key consideration is what happens if a spouse transfers her interest in the house with a quick deed, but remains on the mortgage.

Function

A quitclaim or quick deed transfers whatever interest one spouse has in the real estate fully and completely to the other spouse, according to Lawyers.com. The execution of such a deed is done either through agreement of the parties through negotiations or by order of the judge presiding over the divorce.

Misconceptions

A recurring misconception is that the parties to a divorce can assign which spouse takes full legal responsibility for the mortgage. They consider the transfer of an ownership interest with a quitclaim deed to be the first step in the process. In reality, parties to a divorce and the divorce judge lack the power to remove a spouse from a mortgage loan. Only the mortgage lender can release a spouse from legal liability for the loan, according to "California Real Estate Law," by William H. Pivar. The court can direct a spouse to apply for a loan refinancing, but cannot force the issue if a lender does not approve the change.

Warning

If a spouse signs over her ownership interest to the other party to a divorce, the presumption typically is that the spouse who obtains full ownership will be responsible for mortgage payments, but if that spouse fails to make mortgage payments, the lender will take legal action against both the spouse with full ownership of the property and the spouse to who gave up an ownership interest using a quick or quitclaim deed, according to "California Real Estate Law."

Benefits

Benefits do exist to signing over an ownership interest through a quick deed even if a spouse's name stays on the mortgage. For example, the spouse who no longer maintains an ownership interest, despite being responsible for the mortgage loan, is not liable to taxes on the property. In addition, he is not responsible if someone is injured at the residence and sues.

Expert Assistance

Real estate and mortgage issues represent complicated legal matters in many divorce proceedings. A party to a divorce dealing with such issues typically is best able to protect her rights by hiring an experienced lawyer. The State Bar of California and the American Bar Association provide resources to assist a person involved in a divorce case to find appropriate legal representation.

About the Author

Mike Broemmel began writing in 1982. He is an author/lecturer with two novels on the market internationally, "The Shadow Cast" and "The Miller Moth." Broemmel served on the staff of the White House Office of Media Relations. He holds a Bachelor of Arts in journalism and political science from Benedictine College and a Juris Doctorate from Washburn University. He also attended Brunel University, London.

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